The Genarlow Wilson Story: The Importance of the Eighth Amendment and Good PR

By now, you've probably read elsewhere about the case of Genarlow Wilson, the seventeen-year old Georgia high school student and athlete who engaged in consensual oral sex with a fifteen-year old and was sentenced to ten years in prison under Georgia's mandatory minimum sentence guidelines, which consider him a "sex offender." Wilson spent the past two years in jail until this past Friday, when the Georgia Supreme Court, by a 4-3 ruling, held that Wilson's sentence constituted cruel and unusual punishment under the Eighth Amendment. In the interim, the legislature had changed its laws, making Wilson's crime a misdemeanor - and the Georgia Court found that the changes reflected evolving standards of decency.

Naturally, the blogosphere was abuzz with comments. There's an interesting post at A Public Defender
which wonders whether the Court should take its cues on "evolving standards of decency" from the legislature. He writes:

The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that. The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

Ultimately, PD finds that the opinion is "result oriented" - though its a result that PD supports.

Some of the law professor blogs discuss whether decisions such as this one could lead to the "watering down" of the Eight Amendment. At Sentencing Law Blog, Doug Berman writes:

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case. Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And

Laura Appleman adds this: If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine? I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face. But I'm a little nervous about using the 8th Amendment as a tool to free him....

Berman addresses his colleagues' points, but concludes: "Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?"

Following the story locally, Georgia lawyer Maggie writes that the cruel and unusual punishment was a huge uphill battle, particularly because Joshua Widner, a similar litigant, had just lost on similar grounds. The court, however, distinguished Widner's case by pointing out that the legislative changes applied to Wilson's, but not Widner's case. Overall, Maggie hoped that Wilson would prevail, but did not expect it.

But equally significant as the constitutional question is the decision by Wilson's attorney BJ Bernstein to work this case like crazy in the media. Though I didn't follow this story over the past few months, some blog posts from the summer (such as this one, from Sex Crimes) reference news stories expressing skepticism about Berstein's use of the media -- and whether it was to draw attention to herself, or to help her client. Of course, the verdict on Bernstein's approach is now clear -- this article suggests that the media campaign worked, attracting a wave of public outrage against Wilson's sentence. That's not to say that the court succumbed to public opinion; however, often times, public opinion will force judges to look at a case more closely or creatively than they would with an anonymous litigant.

It's tough to say what mattered more at the end of the day: the Eighth Amendment or savvy PR. And of course, there was the legislative fix, that allowed the court to apply the Eighth Amendment solution. Lawyers should all heed the Wilson story, not just because of the law, but because it also provides a blueprint for winning the impossible case.

Comments

The Genarlow Wilson Story: The Importance of the Eighth Amendment and Good PR

By now, you've probably read elsewhere about the case of Genarlow Wilson, the seventeen-year old Georgia high school student and athlete who engaged in consensual oral sex with a fifteen-year old and was sentenced to ten years in prison under Georgia's mandatory minimum sentence guidelines, which consider him a "sex offender." Wilson spent the past two years in jail until this past Friday, when the Georgia Supreme Court, by a 4-3 ruling, held that Wilson's sentence constituted cruel and unusual punishment under the Eighth Amendment. In the interim, the legislature had changed its laws, making Wilson's crime a misdemeanor - and the Georgia Court found that the changes reflected evolving standards of decency.

Naturally, the blogosphere was abuzz with comments. There's an interesting post at A Public Defender
which wonders whether the Court should take its cues on "evolving standards of decency" from the legislature. He writes:

The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that. The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

Ultimately, PD finds that the opinion is "result oriented" - though its a result that PD supports.

Some of the law professor blogs discuss whether decisions such as this one could lead to the "watering down" of the Eight Amendment. At Sentencing Law Blog, Doug Berman writes:

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case. Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And

Laura Appleman adds this: If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine? I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face. But I'm a little nervous about using the 8th Amendment as a tool to free him....

Berman addresses his colleagues' points, but concludes: "Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?"

Following the story locally, Georgia lawyer Maggie writes that the cruel and unusual punishment was a huge uphill battle, particularly because Joshua Widner, a similar litigant, had just lost on similar grounds. The court, however, distinguished Widner's case by pointing out that the legislative changes applied to Wilson's, but not Widner's case. Overall, Maggie hoped that Wilson would prevail, but did not expect it.

But equally significant as the constitutional question is the decision by Wilson's attorney BJ Bernstein to work this case like crazy in the media. Though I didn't follow this story over the past few months, some blog posts from the summer (such as this one, from Sex Crimes) reference news stories expressing skepticism about Berstein's use of the media -- and whether it was to draw attention to herself, or to help her client. Of course, the verdict on Bernstein's approach is now clear -- this article suggests that the media campaign worked, attracting a wave of public outrage against Wilson's sentence. That's not to say that the court succumbed to public opinion; however, often times, public opinion will force judges to look at a case more closely or creatively than they would with an anonymous litigant.

It's tough to say what mattered more at the end of the day: the Eighth Amendment or savvy PR. And of course, there was the legislative fix, that allowed the court to apply the Eighth Amendment solution. Lawyers should all heed the Wilson story, not just because of the law, but because it also provides a blueprint for winning the impossible case.